Citation Nr: 1023196
Decision Date: 06/22/10 Archive Date: 07/01/10
DOCKET NO. 08-39 837 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to an initial compensable evaluation for
bilateral hearing loss.
ATTORNEY FOR THE BOARD
G.A. Wasik, Counsel
INTRODUCTION
The Veteran had active duty service from November 1942 to
October 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2008 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDING OF FACT
During the appeal period, the Veteran's service-connected
bilateral hearing loss has been productive of, at most, Level
V hearing acuity in the right ear and Level I hearing acuity
in the left ear.
CONCLUSION OF LAW
The criteria for entitlement to an initial compensable rating
for bilateral hearing loss have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85,
Diagnostic Code 6100 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide in
accordance with 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim
by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In
addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include notification
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
The Veteran was provided with notification which complies
with the requirements of the VCAA in January 2008 and May
2008 VCAA letters. In this case, the RO's decision came
before complete notification of the Veteran's rights under
the VCAA. It is arguable that the VCAA notice was not
timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board finds, however, that any defect with respect to the
timing of the VCAA notice in this case was harmless error for
the reasons specified below. Subsequent to the rating
decision on appeal, the RO did provide notice to the claimant
regarding what information and evidence was needed to
substantiate the claim and the Veteran has had the chance to
submit evidence in response to the VCAA letters. Under these
circumstances, the Board finds that all notification and
development action needed to render a fair decision on the
claim decided herein has been accomplished and that
adjudication of the claim, without directing or accomplishing
any additional notification and/or development action, poses
no risk of prejudice to the appellant. See, e.g., Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).
Additionally, the Board notes that this appeal arises from
the grant of service connection for bilateral hearing loss
where the Veteran has disagreed with the initial disability
evaluation assigned. As a result of the grant of service
connection and the assignment of a specific disability rating
and effective date for the hearing loss disability, section
5103(a) notice was no longer required. See Dingess, 19 Vet.
App. at 490.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
The Board also concludes VA's duty to assist has been
satisfied. The Veteran has at no time referenced outstanding
records that he wanted VA to obtain or that he felt were
relevant to the claim.
The duty to assist includes, when appropriate, the duty to
conduct a thorough and contemporaneous examination of the
veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In
addition, where the evidence of record does not reflect the
current state of the veteran's disability, a VA examination
must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589
(1991); 38 C.F.R. § 3.327(a) (2009).
The RO provided the Veteran appropriate VA examinations, most
recently in August 2009. There is no objective evidence
indicating that there has been a material change in the
severity of the service-connected hearing loss since the
Veteran was last examined in 2009. 38 C.F.R. § 3.327(a).
Furthermore, the Board finds that the VA examination findings
obtained in this case are more than adequate, as they are
predicated on a full reading of the medical records in the
Veteran's claims file and based on examination of the
Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 310-11
(2007). The findings from the examination reports consider
all of the pertinent evidence of record including the
statements of the appellant. The Board notes the examiner
who conducted the most recent VA examination indicated that
he did not have access to the Veteran's claims file. The
Court has held that an examination that does not take into
account the records of prior medical treatment is neither
thorough nor fully informed. Green v. Derwinski, 1 Vet. App.
121, 124 (1991). The Board finds, however, that with regard
to the hearing loss claim, the examination report is adequate
for ratings purposes. This is because of the unique nature
of hearing loss claims. Pertinent case law provides that the
assignment of disability ratings for hearing impairment is to
be derived by the mechanical application of the Ratings
Schedule to the numeric designations assigned after
audiometry evaluations are rendered. Lendenmann v. Principi,
3 Vet. App. 345 (1992). The examination in question provided
the Board with sufficient evidence to adjudicate the hearing
loss claim. The audiologist determined the puretone
thresholds at each of the requisite frequencies and also the
speech discrimination scores as required by 38 C.F.R. § 4.85.
The examiner also commented on the effect on occupation and
usual daily activities. Furthermore, the Veteran's claim is
not being denied as a result of a lack of pertinent
symptomatology at any time other than when the VA
examinations were conducted. The examiner was not giving an
opinion regarding the etiology of the hearing loss, he was
providing the Board with a medical quantification of the
current extent of severity of hearing loss. The Board finds
that no prejudice flows to the Veteran as a result of the
failure of the examiner who conducted the August 2009 VA
audiological examination to review the claims file. The
Veteran's representative has not pointed to any prejudice
either. Accordingly, the Board finds that VA's duty to
assist with respect to obtaining VA examinations or opinions
concerning the issue on appeal has been met. 38 C.F.R.
§ 3.159(c) (4).
The requirements of 38 C.F.R. § 3.159(c)(4) have been met.
No additional pertinent evidence has been identified by the
appellant as relevant to the issue decided herein for which
attempts to obtain the evidence have not been made. Under
the circumstances of this particular case, no further action
is necessary to assist the appellant.
Analysis
In September 2007, the Veteran submitted a claim of
entitlement to service connection for bilateral hearing loss.
In March 2008, the RO granted service connection for hearing
loss and assigned a non-compensable evaluation, effective
September 11, 2007. The Veteran has disagreed with the
initial disability evaluation assigned.
The Ratings Schedule provides a table for ratings purposes
(Table VI) to determine a Roman numeral designation (I
through XI) for hearing impairment, established by a state-
licensed audiologist including a controlled speech
discrimination test (Maryland CNC), and based upon a
combination of the percent of speech discrimination and the
puretone threshold average which is the sum of the puretone
thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by
four. See 38 C.F.R. § 4.85.
Table VII is used to determine the percentage evaluation by
combining the Roman numeral designations for hearing
impairment of each ear. The horizontal row represents the
ear having the poorer hearing and the vertical column
represents the ear having the better hearing. Id.
Table VIA is used when the examiner certifies that the use of
the speech discrimination test is not appropriate because of
language difficulties, inconsistent speech discrimination
scores, etc., or when indicated under the provisions of
38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c).
To evaluate the degree of disability from defective hearing,
the rating schedule establishes eleven auditory acuity levels
designated from I for essentially normal acuity, through XI
for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII.
Pertinent case law provides that the assignment of disability
ratings for hearing impairment is to be derived by the
mechanical application of the Ratings Schedule to the numeric
designations assigned after audiometry evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
In accordance with 38 C.F.R. § 4.86, there is an alternative
rating method which may be used when the pure tone threshold
at each of the four specified frequencies (1,000, 2,000,
3,000, and 4,000 Hertz) is 55 decibels or more, VA will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. Each ear will be evaluated
separately. Additionally, when the pure tone threshold is 30
decibels or less at 1,000 Hertz, and 70 decibels or more at
2,000 Hertz, VA will determine the Roman numeral designation
for hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher Roman numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86.
The Board finds that an increased rating is not warranted for
the service-connected bilateral hearing loss at any time
during the appeal period.
On the authorized audiological evaluation in January 2008,
pure tone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
60
65
75
70
LEFT
10
40
50
50
The average pure tone loss was 67.5 decibels in the right ear
and 37.5 decibels in the left ear. Speech audiometry
revealed speech recognition ability of 92 percent in the
right ear and of 94 percent in the left ear.
When 68 decibels is combined with a speech discrimination
score of 92 percent under Table VI, the resulting Roman
Numeral is II for the right ear. When 38 decibels is
combined with a speech discrimination score of 94 percent
under Table VI, the resulting Roman Numeral is I for the left
ear. When Roman Numeral II is combined with Roman Numeral I
under Table VII, the resulting evaluation is non-compensable
which is currently assigned.
As the Veteran demonstrates an exception pattern of hearing
loss under 38 C.F.R. § 4.86(a), the alternative rating under
Table VIa may be used for the right ear. When the
audiometric numbers for the right ear are applied to Table
VIa, the resulting Roman Numeral is V. When Roman Numeral V
is combined with Roman Numeral I under Table VII, the
resulting evaluation is non-compensable.
On the authorized audiological evaluation in June 2008, pure
tone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
55
60
70
65
LEFT
15
40
50
55
The average pure tone loss was 62.5 decibels in the right ear
and 40 decibels in the left ear. Speech audiometry revealed
speech recognition ability of 92 percent in the right ear and
of 92 percent in the left ear.
When 63 decibels is combined with a speech discrimination
score of 92 percent under Table VI, the resulting Roman
Numeral is II for the right ear. When 40 decibels is
combined with a speech discrimination score of 92 percent
under Table VI, the resulting Roman Numeral is I for the left
ear. When Roman Numeral II is combined with Roman Numeral I
under Table VII, the resulting evaluation is non-compensable
which is currently assigned.
As the Veteran demonstrates an exception pattern of hearing
loss under 38 C.F.R. § 4.86(a), the alternative rating under
Table VIa may be used for the right ear. When the
audiometric numbers for the right ear are applied to Table
VIa, the resulting Roman Numeral is V. When Roman Numeral V
is combined with Roman Numeral I under Table VII, the
resulting evaluation is non-compensable.
The most recent VA audiological evaluation was conducted in
August 2009. Pure tone thresholds, in decibels, were as
follows:
HERTZ
1000
2000
3000
4000
RIGHT
55
60
70
70
LEFT
15
40
50
60
The average pure tone loss was 63.75 decibels in the right
ear and 41.25 decibels in the left ear. Speech audiometry
revealed speech recognition ability of 94 percent in the
right ear and of 98 percent in the left ear.
When 64 decibels is combined with a speech discrimination
score of 94 percent under Table VI, the resulting Roman
Numeral is II for the right ear. When 41 decibels is
combined with a speech discrimination score of 98 percent
under Table VI, the resulting Roman Numeral is I for the left
ear. When Roman Numeral II is combined with Roman Numeral I
under Table VII, the resulting evaluation is non-compensable
which is currently assigned.
As the Veteran demonstrates an exception pattern of hearing
loss under 38 C.F.R. § 4.86(a), the alternative rating under
Table VIa may be used for the right ear. When the
audiometric numbers for the right ear are applied to Table
VIa, the resulting Roman Numeral is V. When Roman Numeral V
is combined with Roman Numeral I under Table VII, the
resulting evaluation is non-compensable.
Based on the above, the Board finds that an increased rating
is not warranted for the service-connected hearing loss at
any time during the appeal period. A staged rating cannot be
assigned.
The Board acknowledges the Veteran's contentions regarding
his difficulty hearing; however, the audiology examinations
yielded results warranting no more than, at most, a non-
compensable rating throughout the appeal period. The Veteran
is rated based on a mechanical application of the rating
criteria. Therefore, the objective evidence is more
persuasive with regard to the level of disability under the
Rating Schedule as it specifically pertains to the rating
criteria.
The Board is bound in its decision by application of the
rating schedule to the reported test results. The
preponderance of the evidence is against the claim for a
compensable evaluation for the Veteran's hearing loss
disability. It follows that there is not a state of
equipoise of the positive evidence with the negative evidence
to permit favorable determinations pursuant to 38 U.S.C.A.
§ 5107(b).
In denying the claim for a higher rating, the Board also has
considered whether the Veteran is entitled to a greater level
of compensation on an extra-schedular basis.
According to the regulation, an extraschedular disability
rating is warranted based upon a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization that would
render impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case
is said to include such factors as marked interference with
employment or frequent periods of hospitalization as to
render impracticable the application of the regular schedular
standards. See Fanning v. Brown, 4 Vet. App. 225, 229
(1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a veteran is entitled to
an extraschedular rating. First, the Board must first
determine whether the evidence presents such an exceptional
disability picture that the available schedular evaluations
for that service-connected disability are inadequate.
Second, if the schedular evaluation does not contemplate the
claimant's level of disability and symptomatology and is
found inadequate, the Board must determine whether the
claimant's disability picture exhibits other related factors
such as those provided by the regulation as "governing
norms." Third, if the rating schedule is inadequate to
evaluate a veteran's disability picture and that picture has
attendant thereto related factors such as marked interference
with employment or frequent periods of hospitalization, then
the case must be referred to the Under Secretary for Benefits
or the Director of the Compensation and Pension Service to
determine whether, to accord justice, the veteran's
disability picture requires the assignment of an
extraschedular rating.
With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available schedular evaluation for the service-
connected hearing loss is inadequate. A comparison between
the level of severity and symptomatology of the Veteran's
loss of hearing acuity with the established criteria found in
the rating schedule for hearing loss shows that the rating
criteria reasonably describe the Veteran's disability level
and symptomatology. The Veteran complains of reduced hearing
acuity and the ratings for hearing loss are based on the loss
of hearing acuity as determined by objective testing.
The Board further observes that, even if the available
schedular evaluation for the disability is inadequate (which
it manifestly is not), the Veteran does not exhibit other
related factors such as those provided by the regulation as
"governing norms." The record does not show that the Veteran
has required frequent hospitalization for his hearing loss.
Indeed, it does not appear from the record that he has been
hospitalized at all for that disability. Additionally, there
is not shown to be evidence of marked interference with
employment due to the disability. There is nothing in the
record which suggests that the hearing loss itself markedly
impacted his ability to perform his job. In Martinak v.
Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA
had revised its hearing examination worksheets to include the
effect of the Veteran's hearing impairment disability on
occupational functioning and daily activities. See Revised
Disability Examination Worksheets, Fast Letter 07-10 (Dep't
of Veterans Affairs Veterans Apr. 24, 2007); see also
38 C.F.R. § 4.10. The Court also noted, however, that even
if an audiologist's description of the functional effects of
the veteran's hearing disability was somehow defective, the
veteran bears the burden of demonstrating any prejudice
caused by a deficiency in the examination. The examiners who
conducted the VA examinations during the appeal period
complied with Martinak. They did not report any exceptional
impact of the Veteran's hearing loss on his occupational
functioning and daily activities. At the time of the January
2008 VA examination, it was noted that the Veteran reported
hearing loss. At the time of the most recent VA examination,
the examiner opined that the Veteran's hearing loss did not
have any effect on his occupation and also determined that it
did not have any effect on his usual daily activities. There
are lay statements from the Veteran's family indicating that
conversation would frequently have to be repeated to the
Veteran. However, there is no indication that his hearing
loss impacted his employment in any way. The description of
the effects of his service-connected hearing loss on daily
living do not indicate that the hearing loss presents an
exceptional or unusual clinical picture.
In short, there is nothing in the record to indicate that the
Veteran's service-connected hearing loss causes impairment
with employment over and above that which is contemplated in
the assigned schedular rating. See Van Hoose v. Brown,
4 Vet. App. 361, 363 (1993) [noting that the disability
rating itself is recognition that industrial capabilities are
impaired]. The Board therefore has determined that referral
of this case for extra-schedular consideration pursuant to 38
C.F.R. 3.321(b)(1) is not warranted.
The Board finds that an increased initial rating is not
warranted for the service-connected hearing loss at any time
during the appeal period. A staged rating is not
appropriate. Fenderson; Hart v. Mansfield, 21 Vet. App. 505
(2007).
ORDER
The appeal is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs